Is Temperament Of The Accused A Factor While Examining Whether There Was 'Grave & Sudden' Provocation?

This was how Justice PN Prakash of Madras High Court prefaced the judgment while upholding murder conviction of a retired army officer accused of having shot and killed a boy who was plucking fruits in his conclave.

Now, Retd. Lieutenant Colonel Kandaswamy Ramaraj has been acquitted of murder charges by the Supreme Court, as it found, by giving 'due regard to his temperament', that he fired the shot at the boy, out of grave and sudden provocation. His conviction stands modified to culpable homicide not amounting to murder and sentence to ten years rigorous imprisonment.

In its judgment, the High Court had observed thus: Yet another singular question that will rise in anyone's mind is, however intolerant a man would be towards the activities of lads, would he go to the extent of taking out a rifle and firing at them. The answer may be found in the classic words of Brian LJ, who said, "Devil knoweth what passes in one's mind".

Now the Supreme Court seems to have given due regard to the devil (temperament) which caused grave and sudden provocation in the mind of an army officer, supposedly trained to be disciplined, to shoot at a fruit plucking boy.

This article intends to examine the scope of 'grave and sudden provocation' vis-a-vis 'temperament'.

Grave and Sudden Provocation

Exception 1 to Section 300 of Indian Penal Code explains when culpable homicide is not a murder. It reads:-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

So the ingredients to attract the exceptions are (1) the deceased must have given provocation to the accused, (2) the provocation must be grave, (3) the provocation must be sudden, (4) the offender, by reason of the said provocation, shall have been deprived of his power of self-control, (5) he should have killed the deceased during the continuance of the deprivation of the power of self-control and (6) the offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident.

The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. [Nanavati v. State of Maharashtra AIR 1962 SC 605 ]

In Arun Raj vs Union Of India (2010)6 SCC 457, it was observed that the 'provocation' must be such as will upset not merely a hasty, hot tempered and hypersensitive person but also a person with clam nature and ordinary sense. "What is sought by the law by creating the exception is that to take into consideration situations wherein a person with normal behavior reacting to the given incidence of provocation. Thus, the protection extended by the exception is to the normal person acting normally in the given situation. "

In Arun Raj, "The doctrine of provocation" as was stated by Viscount Simon in Mancini v. Director of Public Prosecution, (1942) A.C. 200, was quoted in approval: The test to be applicable is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex v. Lesbini, (1914) 3 K.B.1116 so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led ordinary person to act as he did. In applying the test, it is of particular importance to (a) consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter."

So the principle that can be culled out from the above decisions of the Supreme Court is that the exception takes into consideration situations wherein a person with normal behavior reacting to the given incidence of provocation. Further, an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led ordinary person to act as he did.

This was reiterated in Budhi Singh vs. State of Himachal Pradesh (2012) 13 SCC 663, in which it was observed that the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. It was observed that a fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self-control and the one which inspires an actual intention to kill. 

In Sukhlal Sarkar vs Union Of India (2012) 5 SCC 703, it was held that a person could claim the benefit of provocation has to show that the provocation was grave and sudden that he was deprived of power of self-control and that he caused the death of a person while he was still in that state of mind. In that case, the accused was a constable in Border Security Force (BSF). The court's attention was brought to the evidence that the deceased had slapped and pushed the accused down and that had provoked him to open fire from his rifle.  Rejecting this contention, the bench observed that such an action of the deceased could not be characterized as grave and sudden, so as to provoke the accused to fire at the deceased killing him at the spot. It is not enough to show that the appellant was provoked into loosing his control, must be shown that the provocation was such as would in the circumstances have caused the reasonable man to loose his self- control, the court said. 

In Gyanendra Kumar vs The State Of U.P. [AIR 1972 SC 502], the contention was that the accused was of an irritable temperament and that he must have fired the shots under grave and sudden provocation. Rejecting this, the Apex Court observed: It may be that the appellant had an irritable temper but there was no question of any grave provocation much less a sudden provocation.  Thus it is clear from this judgment that temperament of the accused does not relax the standards of 'sudden and grave provocation'.

 'Due regard to temperament of the accused'

Back to factual case as discernible from the Supreme Court judgment. While considering the appeal filed by Ramaraj, the bench noted that it was usual for the boys residing in the adjoining colony to enter the prohibited defence area to pluck fruits. It also noted that a domestic help of the army officer had deposed that he was a short-tempered person, and used to chase the boys who used to jump into the defence compound to pick almonds.

Without much discussion about other factual circumstances, the bench then gives 'due regard to the temperament of the appellant during his frequent runins with the children' and goes on to hold that the accused committed the offence whilst he was deprived of the power of self-control upon sudden provocation by the children. The only discussion on evidence in the judgment is quoted below:

Having perused the evidence on record carefully, and with due regard to the temperament of the appellant during his frequent runins with the children, we are of the opinion that the appellant committed the offence in question whilst he was deprived of the power of self-control upon sudden provocation by the children. In our considered opinion, there was no calculated intention or premeditation on his part to commit the murder of the deceased.

The question is whether 'temperament' of the accused can be a factor to determine whether an act of shooting down a hapless boy is a result of 'grave and sudden provocation'? The answer to this lies in the precedents examined above. If this judgment is made a precedent, it would be suffice to show that a murder accused was a short tempered person so as to enure him the benefit of Exception 1 to Section 300 IPC.

It would be apt to summarize this article by quoting an observation made by Gujarat High Court in Rafik Yakubbhai Shaikh v. State of Gujarat 2008 CriLJ 1851 (Guj):It has also been well accepted principle and the Courts have while expressing the word of caution, observed that law cannot permit ill-temper and other abnormalities to become assets for the purpose of committing murder, for if it did, a bad tempered man would be entitled to a lighter verdict of manslaughter where a good tempered one would be convicted for murder.  [Rex v. Lesbini (1914) 3 KB 1116.]

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